SRI LANKA: Two lawyers file action before the Supreme Court regarding death threats and arson attack

A fundamental rights petition has been filed by two lawyers against the Inspector General of Police and 12 other police officers. This petition will be argued before the Supreme Court today (5th March) by a group of senior lawyers lead by Mr. Faiz Musthapha. 

The Petitioners are H.T. Amitha Ariyaratne and H.R.D.G. Mendis, a husband and wife who are both Attorneys-at-Law. The Petitioners state that in or about 1998, the 1st Petitioner (Mr. Ariyaratne), embarked upon his professional career practicing mainly in Criminal Law in the Negambo High Court and the Magistrate Court. In addition, the 1st Petitioner occasionally appeared in the Gampaha and the Colombo High Courts. Furthermore, he has handled many labour matters in Labour Tribunals. The 2nd Petitioner (Ms. Mendis) has assisted the 1st Petitioner in his legal practice. 

The Petitioners state that from or about 2004, he had also been retained by Civil Society Organizations to represent the poor litigants, i.e. mostly victims of torture and unlawful arrest who had sought legal aid from such organizations. The 1st Petitioner has represented many victims in the National Human Rights Commission, Sri Lanka (HRC). His professional fees were paid by the relevant organizations on the basis of his appearances in court. The said Organizations include:

• Right to Life Human Rights Centre, Katunayake (hereinafter referred to as “Right to Life”);
• Rule of Law Centre, Nugegoda;
• Media Centre, Kandy;
• Kamkaru Sevana, Ja-ela;

The Petitioners state that in or about 2007, Right to Life appointed the 1st Petitioner as their Legal Consultant. Right to Life is a Civil Society Organization formed for the purpose of protecting, safeguarding and promoting of Human Rights. One of the key functions of Right to Life has been to provide legal aid for indigent litigants whose rights have been violated by state bodies. Consequently, he represented a number of torture victims and many other litigants who had been subjected to grave human rights violations by the Police. 

The Petitioners state that one Anton Sugath Nishantha Fernando (hereinafter referred to as “Sugath Nishantha”) and his family of Negambo were alleged to have been brutally assaulted by several police officers attached to the Negambo Police Station. The said Sugath Nishantha retained the 1st Petitioner to appear for him in several cases relating to the said alleged assault in the original court. In the mean time, the said Sugath Nishantha filed a Fundamental Rights Application bearing no. 446/2007 against the said police officers, which is still pending in the Supreme Court. However, on or about 20.09.2008, the said Sugath Nishantha who had been under threats was shot dead by an unidentified gunman. Investigation into the said assassination is still pending and no suspects have been apprehended so far. 

The Petitioners state that on or about 24.09.2008 around 2.05pm the Right to Life Office at No.555, Negombo Road, Katunayake received a threatening telephone call stating that if he continued to appear in the cases of late Sugath Nishantha the same consequences would befall upon him as the fate of Sugath Nishantha. Furthermore, on or about 21.09.2008, another lawyer attached to Right to Life namely Chamari Mahanayake has also been threatened via telephone. Right to Life by letter dated 26.09.2008 sent a written complaint to the 1st and 10th Respondents with regard to the aforesaid threats. Subsequently, Right to life received letters dated 26.09.2008 and 24.10.2008 acknowledging the receipt of the said complaint and informing that the investigations in to the aforesaid threats have been referred to the Peliyagoda Crime Division. 

The Petitioners state that on 26.01.2009, the Right to Life office at No.555, Negambo Road Katunayake received another similar threatening message via telephone. On the same day, Right to Life sent a written complaint to the 1st Respondent (IGP) via registered post. 

The Petitioners state that on or about 27.01.2009, the 1st Petitioner went to the Negambo Police Station in order to obtain a certified copy of a complaint made by one of his clients, i.e. Suranji Sandamali who was living in hiding due to death threats (wife of the late Sugath Nishantha, who is also the 2nd Petitioner in the aforementioned FR Application bearing no. S.C.F.R.446/2007). The said complaint had been made with regard to the loss of her National Identity Card; on that day, the 1st Petitioner reached the Negambo Police Station around 3.00pm and when he was trying to park his vehicle next to the three-wheeler park which was in close proximity to the main gate of the Police Station, an officer of the Civil Defence Force (whose identity is not known to the 1st Petitioner) shouted at the 1st Petitioner using abusive language and directed him to move the vehicle further away from that place. After complying with the said direction the 1st Petitioner introduced himself to the said officer and conveyed his displeasure over the language used by him. Thereafter, the 1st Petitioner went inside the Police Station and he was referred to the Officer in Charge of Administration (12^th Respondent). The 12th Respondent directed a woman police constable to provide the copy of the relevant complaint and requested the 1st Petitioner to wait for about half an hour. Then, the 1st Petitioner walked towards the entrance of the building with the intention of returning in about half an hour later. Whilst the 1st Petitioner was walking along the corridor the end of which opens onto an arch and as the 1st Petitioner almost reached the said arch the 13th Respondent came and blocked the 1st Petitioner’s way. 

Then, the 13th Respondent using abusive and filthy language threatened the 1st Petitioner with death. The 1st Petitioner tried to avoid the 13th Respondent by saying that he is an Attorney-at-Law and he had come to the Police Station for a professional purpose. At that moment, the 13th Respondent dealt a severe blow on the 1st Petitioner’s left shoulder causing severe pain. Thereafter, the 1st Petitioner rushed back to the 12th Respondent’s room. The 13th Respondent still shouting in abusive language followed the 1st Petitioner up to the entrance to the 12th Respondent’s room. The 13th Respondent did not enter the room of the 12th Respondent. 

Thereafter, the 1st Petitioner apprised the 12th Respondent about the aforesaid death threats and the assault that he was subjected to. Furthermore, the 1st Petitioner requested him to take appropriate action in that regard. However, to the surprise and dismay of the 1st Petitioner the 12th Respondent categorically refused to take any action with regard to the said incident and asked the 1st Petitioner to leave the Police Station after obtaining the copy of the relevant complaint. In the circumstances, the 1st Petitioner explaining the gravity of the said assault, urged the 12th Respondent to call the particular police officer (13^th Respondent) to his room. Subsequently, the 13th Respondent was called to the 12th Respondent’s room. At that moment, the 1st Petitioner was seated in front of the 12th Respondent and the 13th Respondent was standing by the 1st Petitioner towards his left. Whilst the 1st Petitioner was explaining the incident to the 12th Respondent, the 13th Respondent hit the 1st Petitioner twice on the wrist of his left hand. Thereafter, as the 12th Respondent himself witnessed the conduct of the 13th Respondent the 1st Petitioner requested the 12th Respondent to record his complaint pertaining to the said assault and the death threats. The said request was turned down by the 12th Respondent stating that the 1st Petitioner could make the complaint to any other place that he wished to. At the time the Officer in Charge or any other superior officer was not present at the Police Station. Then the 1st Petitioner phoned Right to Life and asked two colleagues to come to the Police Station. After the two colleagues Erantha and Wasantha came to the Police Station, the 1st Petitioner obtained a copy of his client’s police complaint and left the premises of the Police Station. 

On the same day, later in the evening, the 1st Petitioner telephoned via hot line the Police Headquarters and informed it about the aforesaid assault and humiliating treatment. Furthermore, the 1st Petitioner made a complaint to HRC via its hot line and also took steps to apprise the secretary of the BASL Mr. U.R de Silva on the incident. HRC inquiry is pending at its preliminary stage. 

On the following day, the 1st Petitioner was informed by the Police Headquarters via telephone that they had noted down the relevant incident and in order to take further action, requested the 1st Petitioner to make a formal written complaint at the Police Headquarters. 

Consequently, the 1st Petitioner took steps to hand over a letter dated 28.01.2009 setting out the relevant incident in detail, to the Police Headquarters (addressed to the 1st Respondent), HRC and the Secretary of the BASL on 30.01.2009. Furthermore, the 1st Petitioner sent the same letter by registered post to the aforementioned authorities. 

The Petitioners state that on 30.01.2009, the 1st and 2nd Petitioners worked late in to the night at their office which is situated in a separate building next to their house. The 1st and 2nd Petitioners’ files, clients’ documents, law books, deeds are all kept in the said office. The 1st Petitioner was working till late attending to his professional work while the 2nd Petitioner was preparing herself for the Judicial Service Entrance Examination which was due on the following day. Around 10.30pm they left the office and returned to the residence. Within few minutes they observed that their office building had been set on fire. Despite the efforts of the 1st and 2nd Petitioners and neighbours to put out the fire the entire building was badly damaged with valuables kept in the office were completely destroyed. 

The Petitioners state that immediately 1st Petitioner informed the police of the fire via emergency hot line-119. However, by the time the police arrived at the incident the office had been burnt down. 

The Petitioners state that on the same night, around 11.50pm, the 1st Petitioner lodged a complaint at the Ragama Police Station bearing number CIB 1 388/618 with regard to the said breaking out of the said fire at his office. 

The Petitioners state that on the same night (30.01.2009), in fear of further attacks on their lives and considering the safety of their two minor children the 1st and 2nd Petitioners moved to a safe house wherein they have been staying up to date. 

The Petitioners state that on the following day, around 12.30pm, the 1st Petitioner went to the Ragama Police Station and requested to initiate formal investigations in to the said incident of fire at his office. Thereafter, on the same day the Officer in Charge attached to the MO Branch of the Ragama Police Station visited the 1st and 2nd Petitioners’ office building and inspected the premises. After the said inspection, the said Police Officer asked the 1st Petitioner to come to the Ragama Police Station around 5.00pm in the evening. The 1st Petitioner accordingly went to the Police Station and met the Officer in Charge (11th Respondent). The 11th Respondent told the 1st Petitioner that he would come to the said office building immediately for an observation. However, on that day, the 11th Respondent did not turn up as indicated for the observation. When requested over the phone on numerous occasions to visit the site, the 11th Respondent delayed to come to the site making various excuses. The 1st and 2nd Petitioners waited at their residence until around 10.30pm and went back to the safe house. The 1st Petitioner took steps to keep the said office building locked in order to preserve evidence. 

The Petitioners state that on the following day (01.02.2009), the 1st Petitioner made a further request from the 11th Respondent to initiate formal investigations in to the said incident of fire. However, on this day around 6.30pm the 11th Respondent arrived to inspect the office premises with 5 other policemen. 

The Petitioners state that though their office was burnt on 30.01.2009 no proper investigations were commenced by the police until on 02.02.2009 when a Team from the Crime Division and the Peliyagoda Police commenced what appeared to be a preliminary investigation into the incident. 

The Petitioners state that they verily believe that the fire erupted at the office building of the 1st Petitioner was a meticulously planned and well coordinated attack and further, it was the culmination of a series of incidents of intimidation carried out with a view to effectively prevent the 1st Petitioner from duly attending to his professional commitments. 

The Petitioners state that apart from the 1st and 2nd Petitioners several other Attorneys-at-Law were subjected to violence have made complaints to Police: to wit:

(a) Mr. J.C. Weliamuna, Attorney-at-Law who moved the resolution marked P5 came under a grenade attack on 27.09.2008. The BASL in fact made representations to the highest authorities including the 1st Respondent (IGP). But so far, the Police have failed to apprehend suspects. 
(b) Mr. Mohotti, Attorney-at-Law who was humiliated at the Bambalapitiya Police Station has made complaints to police in addition to BASL calling upon the authorities to take action against the errant officers. The Police have not so far taken any action against the relevant officers. A Fundamental Rights Application has been filed in this regard and the matter is pending in the Supreme Court. 
(c) Mr. Methsiri Paranavithana, Attorney-at-Law has complained to Your Lordships’ Court by an Affidavit in the Fundamental Rights Application bearing No. 277/2008 that he was abused by DIG Herath and SSP Ajith Fonseka.

The Petitioners state that in the totality of the aforesaid circumstances, the Police have failed to investigate in to the attacks on Attorneys-at-Law and in particular the 1st and 2nd Petitioners. The failure to do so has resulted in aggravated attacks leading to the 1st and 2nd Petitioners being prevented from their active legal practice. Thus, the Petitioners state that the Respondents have jointly or severally violated the fundamental rights of the Petitioners guaranteed under Article 11, 12(1) and 14(1)(g) of the Constitution. 

The Petitioners request the court to grant leave to proceed with this application; declare that anyone or more or all of the Respondents have violated the fundamental rights of the Petitioners guaranteed under Articles 11, 12(1) and 14(1)(g) of the Constitution of Sri Lanka; declare that the 13th Respondent has violated the fundamental rights of the Petitioner guaranteed under Articles 11, 12(1) and 14(1)(g) of the Constitution of Sri Lanka; declare that the 12th and 13th Respondents are not fit to hold public office and serve as police officers any further and by way of an interim order direct the Inspector General of Police and the National Police Commission to forthwith investigate into the conduct of the 12th and 13th Respondents pending this Application; direct the any one or more of the Respondents or any other appropriate authority to immediately investigate and report to Your Lordships’ Court the outcome of the investigations so far conducted in to the incidents pleaded herein; direct the National Police Commission to forthwith look into the complaints against the Respondent Police Officers and take appropriate action thereof; make order directing all Respondents to investigate into complaints made by the Petitioners and bring the offenders to justice according to law and to keep Your Lordship’s Court appraised of the progress by filing periodic reports; direct any one or more of the Respondents to submit to Your Lordships’ Court all decisions, reports and documents relevant to the matters complained herein; grant compensation to the Petitioners in a sum of Rs.10,000,000/-; grant costs of this Application; and grant such other and further reliefs as to Your Lordships’ Court shall seem fit.